Colorado Supremes Poised to Address Defenses in Colorado’s Premises Liability Statute

By Ben Figa

The debate is heating up in Colorado about whether landholders can claim defenses of comparative negligence, pro rata liability and assumption of risk for injuries prior to 2006.  One published opinion of the Colorado Court of Appeals has said no and two others have said yes.

Colorado’s Premises Liability statute has caused many problems for lawyers, legislators and judges.  Essentially, the invitee-licensee-trespasser distinctions were once recognized at common law, but then the Colorado Supreme Court abandoned the common law classification scheme in favor of the traditional negligence concept.  The state legislature overruled the Colorado Supreme Court by passing the Colorado Premises Liability Act, which retained those common law distinctions.  The statute, when originally written, did not explicitly recognize the defenses of comparative negligence, pro rata liability and assumption of risk.  In 2006, the legislature amended the statute to include those defenses  Although the law is more settled now, the question remains: were those defenses available prior to the 2006 amendment?

The debate centers on whether the 2006 amendment was a “change” to or a “clarification” of the existing law.   If the amendment is considered a “change,” then defenses were not available prior to 2006.  Conversely, if the amendment was a “clarification,” then the defenses were available before the amendment. The presumption is that an amendment is a “change” absent evidence to the contrary. 

In Martin v. Union Pacific Railroad Co., a Union Pacific train struck a woman whose car was stalled vehicle at a gated crossing.   The railroad company offered evidence that Martin could have avoided the injuries by, for example, backing off of the crossing or exiting the car.  Interpreting the pre-2006 statute literally, the trial court struck the defenses of comparative negligence and pro-rata liability.  The Colorado Court of Appeals affirmed and determined that comparative negligence and pro-rata liability were not available as statutory defenses before 2006.  The court found that the legislative history conflicting and that the plain language indicated a “change” in the law.

Since the Martin decision, two divisions of the Colorado Court of Appeals have come to the opposite conclusion.  In Dewitt v. Tara Woods LP, the court concluded that comparative negligence was available as a defense even though the statute did not explicitly mention it.  The Dewitt found three arguments persuasive The Dewitt Court found three arguments persuasive:  the Colorado legislature was aware of comparative negligence when it enacted the statute; the comparative negligence statute applies to “any action;” and the prior version of the premises liability statute did not explicitly exclude comparative negligence as a defense.  For these reasons, the Dewitt Court found no ambiguity in the premises liability statute and did not address whether the amendment was a “change” or a “clarification.” In Tucker v. Volunteers of America Colorado Branch, a second court found this reasoning persuasive.

The Colorado Supreme Court has granted certiorari on Martin and will address whether comparative negligence, pro-rata liability and assumption of risk are available as defenses in premises liability actions before the amendment.  The outcome is important because many pre-2006 premises liability actions are now being litigated.  Additionally, the Martin holding creates an anomalous disparity between the defenses that can be claimed in premises liability actions versus other tort actions.


See Vigil v. Franklin, 103 P.3d 322 (Colo. 2004) (explaining the background).

C.R.S. §§ 13-21-111, 13-21-111.5, 13-21-111.7.

Martin v. Union Pac. R.R. Co., 186 P.3d 61 (Colo. App. 2007)

The court noted that language “shall continue to apply” indicates a clarification and “shall apply” signals a change.  Martin, 186 P.3d at 67.

DeWitt v. Tara Woods LP, --- P.3d ----, 2008 WL 4592122 (Colo. App. October 16, 2008); Tucker v. Volunteers of America Colorado Branch, --- P.3d ----, 2008 WL 5006528 (Colo. App. Nov. 26, 2008)